BSJ v The State of Western Australia

In the case of BSJ v The State of Western Australia, the appellant, BSJ, was convicted by a jury in the District Court of Western Australia of indecent assault and sexual penetration without consent. The appellant appealed against his conviction to the Court of Appeal of Western Australia. The appeal was heard by Mazza JA and Mitchell and Vaughan JJA, who found that the appeal should be dismissed.

The appellant argued that the trial judge made a wrong decision on a question of law, or there was a miscarriage of justice, because the trial judge declined to direct the jury to consider whether the prosecution had proved that the appellant did not have an honest and reasonable, but mistaken, belief that the complainant was consenting to the charged acts. The court found that the appeal failed on the basis that while there was an evidential basis for an honest but mistaken belief that the complainant consented to the sexual acts, there was no evidential basis to conclude that the appellant's honest but mistaken belief was reasonable.

The court considered the relevant legal principles, including the operation of s 24 of the Criminal Code (WA) which provides a 'ground of exculpation' where a person does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things. The court found that while the complainant's evidence could lead a jury to have a reasonable doubt as to whether the appellant honestly believed that she consented to the sexual touching and penetration, there was no evidential basis for the jury to conclude that any belief the appellant may have had as to consent was reasonable.

The court ultimately concluded that the trial judge was correct in not directing the jury on s 24 of the Criminal Code (WA) and dismissed the appeal. The appellant was granted leave to appeal, but the appeal was dismissed.